Home » Legal and Judicial Affairs » Tomana Out of Order On Law of Consent

ZIMBABWE’S Prosecutor-General, Johannes Tomana, has had some odd things to say in the past, but none weirder than his latest comments on child rape and child marriage as published in The Chronicle last week.

The sum effect of his statements was that it’s not a problem if a man has sex with 12-year-old girl because she is capable of consenting and making decisions on marriage and, in fact, he would be doing the idle girl a favour by marrying her and giving her something to do.

The entire interview was outrageous and his views were scandalous. It would have been the best news to predators who prey on young girls. It is hard to see how a man occupying such a senior role in the justice system and with the responsibility to protect children, could hold such parochial and medieval views on a matter of such gravity.

Last week, when we started the current debate on the issue of consent laws, I explained why the law of consent was inadequate in that it does not sufficiently protect young girls above the age of 12. I also explained why these limitations were exacerbated by outdated, patriarchal and retrogressive attitudes exhibited by the conduct in previous cases of the police, prosecutors, magistrates and judges.

If anything, Tomana’s interview with The Chronicle has just confirmed these fears and concerns. The whole interview is dripping with narrow-minded, patriarchal and scandalous views that should disgust all reasonable people. It’s an embarrassment to Zimbabwe that its chief prosecutor holds such views in regard to young girls and sexual offences against them.

It’s easy to see why child sex offenders in Zimbabwe will be encouraged by the PG’s comments. The PG is basically saying it is okay for child sex offenders to go ahead with their sordid acts because actually they would be doing the girls a favour by giving them something to do and marrying them. In his view, marriage of young girls is a rescue facility from the problem of idleness because of dropping out of school.

However, in trying to justify his view, the PG also demonstrates shocking lack of knowledge of the Constitution. He wants us to ask a girl who is under 16 to make a decision on marriage. He misrepresents the law by saying that an under 16 who is idle “can make a decision, and they can make a real conscious decision about what they want about their own life and when you establish that, there is no need to go all the way to punish the other person”. But the law says nothing of that sort. In fact, the new Constitution states that the age of marriage is 18. In other words, no person below the age of 18 can enter into marriage.

Yet here is a whole PG, an important enforcer of the law who is supposed to uphold the Constitution, saying 13-year-olds are allowed by the law to make ‘real conscious decisions’ about sex and marriage. The supreme law of the land says this is illegal but the PG wants to set his own standards, divorced from those set in the Constitution.

In this regard, the PG behaves just like the Registrar-General, Tobaiwa Mudede, in relation to the law of dual citizenship. The new Constitution allows dual citizenship for citizens by birth. The Constitutional Court has confirmed this in two separate judgments. Yet in his wisdom or lack of it, Mudede continues to refuse that dual citizenship is permitted. The RG’s website still states boldly as follows: “Prohibition of dual citizenship: No adult citizen of Zimbabwe shall be entitled to be a citizen of foreign country”. This is not what the Constitution says. But Mudede has his own law.

These two men have decided to set their own legal standards, to be law-makers, creating different rules from the constitutional standards. The government should shoulder some responsibility. These men represent it in very senior positions and what they say is taken to be the position of government unless it states otherwise. By its silence, the government gives the impression that they condone their conduct. This is why on both important matters, government must bring both Tomana and Mudede to order.

The PG’s reasoning is that young girls who would have dropped out of school and are idle are better off having sex and getting married early in life. His solution, in effect, to the problem of kids dropping out of school is to get them to have sex and get married, so that they have something to do. These are his words, “we have a situation in which nine-year-olds, 12-year-olds and 13-year-olds are not in school and not doing anything” and that their preferred choice wouldbe “in the direction of getting married”.

Not only does he forget that under the Constitution a person cannot marry until they are 18, Tomana also overlooks the fact that even under the current and inadequate law, kids who are under 12 are regarded as not being capable of consenting to sex. Yet he thinks the solution to school-dropouts at that age is to give them sex and marriage for things to do. It’s shocking that such views are coming from the country’s chief prosecutor.

Further betraying the streak of patriarchy that informs his warped views and is problematic in this area, the PG thinks getting young girls married early is good for the parents. He says, “in some cultures for example, they [people] value marriage more than anything else because when your girl child is married, you’ve achieved what any father or mother would want to expect in their girl child”.

In his view, therefore, it can only be a good thing for a young girl to get married. The best interests of the child are irrelevant, as what matters is the happiness of her parents. The PG forgets that the constitutional standard and indeed the internationally recognised standard is that in all matters involving children, the best interests of the child are paramount.

This is why the law of consent exists. It specifically creates offences criminalising the behaviour of persons who have sex with young girls of a certain age principally to protect them because of their vulnerability. The law is based on a recognition that children up to a certain age are not capable of making decisions on sexual matters. By saying consent should not be a defence, the law is actually designed to save kids from themselves.

Yet to the PG, all this does not seem to matter. What matters is the interest of the father or mother to see their child getting married, even at 12! It must give considerable comfort to all men who prey on children of that age to know that the country’s chief prosecutor thinks there is no problem with that. They can violate kids and marry them afterwards.

This indeed is why most sexual offences against children are not reported or if they are, they do not go very far as they are settled by the father of the child receiving compensation and dowry from the offender – essentially, patriarchy presiding over the predicament of a young girl.

In all this the PG forgets that one of the key aims of the criminal justice is to deter offenders, to protect would-be victims by deterrence. This cannot be achieved by taking a soft and accommodating approach towards child sex offenders. You can’t have deterrence when you say child sex offenders can atone for their crime by promising to marry the victim. This only serves to encourage such rotten behaviour, which society should be fighting hard to eradicate.

And yet here is the chief prosecutor basically saying it’s absolutely fine for those who violate children to marry them and in the process get a lighter sentence. This will not stop abuse. It will only encourage more of it and society will be worse for it. In fact, it makes young girls vulnerable as they can be married off by their parents to older men in expectation of material rewards.

Not content with his strange and inaccurate views on the law, the PG ventures into science and offers the view that he knows “girls develop faster than boys and mature faster than boys”. This is presumably meant to justify that 12-year olds can make decisions on sex and marriage notwithstanding the fact that Parliament put the marriage age at 18. He is making his own law. He might as well lower the voting age for girls to below 18. And on that reasoning, he might as well differentiate the marriage between girls and boys contrary to what the Constitution provides.

The PG thinks sending offenders to jail destroys the lives of girls who would have been violated. His preference would be to be lenient and to allow them to marry the girls. No, Mr PG, what destroys the lives of young girls are not the tough sentences handed down to sex offenders but the older males who prey on 12 year-old girls. Those are the ones who destroy the lives of young girls and should be punished, not molly-coddled.

Tomana says that if you ask the girls, they would want their abusers to be treated more leniently. But the application of criminal law has never depended primarily on the views of victims. This is why when a crime is committed, the state takes responsibility and investigates and prosecutes. The crime is a crime against the state. Does Tomana want to let murderers roam free after negotiating terms with their victims’ families?

The law applies regardless of what the victims think and in case of sexual offences against children precisely because such children must also be protected from themselves and their often impressionable view of life. The purpose must be to punish and deter such behaviour and yet the views of the PG would seem to encourage it.

The PG also defends sending child sex offenders to work in schools. His reasoning is that this punishment embarrasses the offender. He does not see the problem with placing child sex offenders in a location that exposes children to risk. There are millions of other ways to embarrass rapists without getting them near children.

In any event, Tomana seems to miss the point completely, the point being that community service and fines should never be seen as options in cases of rape against children. The recent outrage has precisely centred on the apparently lenient sentences passed against persons who would have had sex with young children.

In the final analysis, what the PG has said is probably held by thousands of other like-minded men out there. A group of men sitting in a bar somewhere in Mzilikazi might be discussing this this matter over a mug of opaque beer. Some of them might even share the views of the PG. That would still be wrong but probably to be expected in such a setting. They would be what they are – bar thoughts of inebriated men. What you don’t expect is for the country’s chief legal officer to be uttering such views in public. What he says represents the approach of the law enforcement authority that he leads and ultimately it is taken to represent government. For that reason it embarrasses both government and the nation.

Parliament ought to bring the PG to account. He must explain himself. It has the power to do so, notwithstanding the PG’s independence. But if government is serious, then it must know that these statements make his position untenable. Elsewhere in the world, a chief law officer holding such warped, preposterous and outrageous views would not last a minute longer in his important role.

Alex Magaisa is a Zimbabwean lawyer.

Source : New Zimbabwe

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